ELY v. KLAHR
Argument of Philip J. Shea
Chief Justice Warren E. Burger: We’ll hear arguments next in Number 548, Ely against Klahr.
Mr. Shea, you may say precede whenever you are ready.
Mr. Philip J. Shea: Thank you.
Mr. Chief Justice and may it please the Court.
The issue raised by this appeal that a three-judge District Court sitting in Phoenix, Arizona by its decree of May 19, 1970, abused its discretion and committed error by refusing to assure a preliminary injunction to enjoin the operation of the admittedly unconstitutional reapportionment plan and the reapportionment was before the court enacted by a special session of a state legislature and signed into law on January 22, 1970.
As in all prior apportionment statues before it, it stubbornly clung to the idea that reapportionment should be brought about on the basis of voter registration and not on the basis of people.
Now, the use of voter registration as distinguished from the use of population, of people in Arizona has a particularly invidious discriminatory effect.
It probably would in any place because of poor people and certain minorities don’t register as much other people, as much as effluent.
It is particularly so in Arizona.
The northeastern part of the State of Arizona which is one-sixth of a very large state, contains the highest concentration of Indians of any area in the United States.
There are about 70,000 American Indians, Navajos and Hopis and some Apaches.
The average sized district, the legislative district in Arizona is 54,000 people.
The 70,000 people in the northeastern part, 70,000 Indians in northeastern Arizona are still under this reapportionment plan dominated by their white neighbors to the south.
In South Phoenix of this, a very poor area, it is mostly poor black, poor Mexican-American, poor white.
In the legislative district in South Phoenix and it’s just one, there are 70,000 people in an area in northeastern Phoenix, an area which all white, an area which is affluent.
There are 27,000 people, more than twice as many people in South Phoenix in a district as in northeastern Phoenix.
Now, this discrimination of course is invidious, of course it’s horrible and so we complain that Court committed error, it clearly abused its discretion by refusing to enjoin it.
The voter registration as the basis of the apportionment of Arizona has along history.
As matter of fact, it’s the only way we got the reapportion of legislature, at least the lower house, beginning with the adoption of the Arizona Constitution in 1913 which is the basis of -- which was the original statement of the apportionment arrangement.
The lower house, the House of Representatives is a portion with a basis of a voter registration.
The upper house, the State Senate was then apportioned on the basis of county representation, two members from each county.
Now, this suit was failed by Gary Peter Klahr, then a third year law student, in April 1964.
The law at that time seems quite clear.
This Court had seem to -- made it simple and flat and direct statement, “there should be one man, one vote.”
Nevertheless, the Court did not act on the complaint and did not hold hearings on it until about a-year-and-a-half, more than a-year-and-a-half later.
It was waiting patiently, the legislation to the job for the reason that I’m sure the Attorney General is going to say here today that the legislative should be given an opportunity to do to remedy the wrong.
Now, legislature more than a year after the suit was filed, enacted something called Senate Bill 11 which provided for a terribly malapportioned State Senate and it didn’t deal whatever with terribly malapportioned House of Representatives.
The -- after a hearing on that Bill, the Court by its decree and it was first decree issued in this case, the decree of February 22, 1966, held that the constitutional arrangement of both houses was unconstitution -- that is the Arizona Constitution arrangement was unconstitutional under U.S. Fourteenth Amendment.
And also that Senate Bill 11 was unconstitutional and went on to impose a Court plan what it in its decree called a temporary plan, temporary provisional plan, that was based on voter registration.
At least, it was based on voter registration in the urban areas of Phoenix and Tucson and outside of the counties including Phoenix and Tucson, the rural counties, a portion was based on county, 1966 counties, census of following respecting county lines.
Now, the malapportionment resulting from the use of this system, that is to say voter registration in the cities and respecting county lines in rural areas was gross.
They were -- the deviation was plus 16% to cent I believe to minus 6% and that’s just in the county areas.
There’s no way of computing how gross much more gross the malapportionment was under that plan in the urban areas where voter registration was used.
Nonetheless, this temporary provisional plan, so-called was used in 1966 and again in 1968, the legislature still having failed to act in a valid way.
The legislator did enact, try its hand then again in 1967 and it was declared unconstitutional and then it came back in 1969.
Now, the arguments, physical arguments on part of the respondent is not that the plan is in effect, the new temporary provisional plan, not that it’s constitutional.
It’s grossly malapportionment.
It’s a gross case of malapportionment.
The argument is that well the Court ordered that this plan be used in the elections of the November 1970, and therefore, it loses its affect, loses its sting after that.
And the reason that we came here to complain was the history does not show that the malapportionment plan loses its sting the day after the election and that it goes away.
The decree of February 22, 1966, set up a plan which was used not only in ‘66 but in ‘68 and why isn’t something done.
The fact is the Court can insist on sitting back and waiting for the legislature to act which is very nice and they should give them a reasonable a chance, but seven years is a far too long.
Unknown Speaker: (Inaudible)
Mr. Philip J. Shea: Yes, it is.
Unknown Speaker: Does this have a temporal data as such?
Mr. Philip J. Shea: No I think they set until they finish their work and I believed Mr. McGowan is close to the situation.
I think they have in mind a special session later on.
Unknown Speaker: Does the Court say that the legislature didn’t act by November 1971?
Mr. Philip J. Shea: Yes.
Unknown Speaker: What does that mean?
Do you think that means anything to the (Inaudible)?
Mr. Philip J. Shea: That means that they’ll open the doors to us after November 1, 1971.
Unknown Speaker: In the Court?
Mr. Philip J. Shea: Yes, until then the doors are close to us.
Unknown Speaker: Would the ’70 figures, they won’t have to be a new plan anyway?
Mr. Philip J. Shea: Well, that’s a lot --
Justice Byron R. White: You have the part of legislature in the reapportionment.
Mr. Philip J. Shea: There has to be a new plan anyway, right.
Justice Byron R. White: So what is still left aside here?
Mr. Philip J. Shea: What’s left aside here is whether this Court --
Justice Byron R. White: You bring them to the District Court and we know that on the issue of (Inaudible).
Mr. Philip J. Shea: Well, it’s a nice opinion but I don’t agree with what it did.
Justice Byron R. White: Do I understand it on voter registration that you made accommodation, made it in view of --
Mr. Philip J. Shea: Yes.
Justice Byron R. White: And on the other subsequent issue, you agree with it?
Mr. Philip J. Shea: Yes I do.
Justice Byron R. White: And the only thing is that you would rather have something else happened for purposes of the election that is now (Inaudible).
Mr. Philip J. Shea: Never have something else happen now.
Justice Byron R. White: With what?
Mr. Philip J. Shea: A reapportionment plan, right away.
Justice Byron R. White: By the court?
Mr. Philip J. Shea: By the Court, that’s the only way were going to get it.
Justice Potter Stewart: In this court?
Mr. Philip J. Shea: No, by three-judge court sitting in the Phoenix.
Justice Potter Stewart: If it’s going to, it said it’s going to do that if the legislature doesn’t act by November 1st of this year on the basis on the 1970 census figures?
Mr. Philip J. Shea: It’s says that -- what it said, I believe was that if the legislature fails to act, validly by November 1, 1971, any party may petition for further relief and that’s not to say I don’t believe but if the Court is going to impose itself on a constitutional plan and again --
Justice William J. Brennan: The start of the planning, (Inaudible)
Mr. Philip J. Shea: Yes.
Justice William J. Brennan: (Inaudible) by 1970?
Mr. Philip J. Shea: No, but if they open door to us we’ll have one in jiffy. Of course, we had one last year in April of 1970.
We had a plan based on population.
Justice William J. Brennan: Well, haven’t yet on the 1970 figure?
Mr. Philip J. Shea: No, we haven’t.
Justice William J. Brennan: If you did then will you go to the Court and say look into the plan and not wait for the 1970 figure, give us a hearing and we’re going to implement that?
Mr. Philip J. Shea: Well, we take --
Justice William J. Brennan: What is the --
Mr. Philip J. Shea: We take it from the opinion of the Court, we take the Court as it were that it won’t hear us before November 1, 1971.
That’s what we really we want to do.
We want to get the figures and put on a census map and get a fair apportionment plan and have the Court order it and have that become a law of the state until such time as the legislature does as good or a better job.
Justice Byron R. White: Well, the state didn’t prosecute it?
Mr. Philip J. Shea: No.
Justice Byron R. White: So that if it is apparently satisfied with the way the District Court decided things on the substantive --
Mr. Philip J. Shea: Yes, I take it, Mr. Justice White that they agree with that.
Justice Byron R. White: So, the legislature follows that decision as about to a court based on legislation --
Mr. Philip J. Shea: Well, the legislature had again history, I guess there’s no basis for being (Inaudible) about what the legislature is going to do.
Justice Byron R. White: Here you have an outstanding judgment that says -- that the opinion says that the (Inaudible) on accurate basis for --
Mr. Philip J. Shea: Well, we had Baker against Carr.
We even had Wells and Rockefeller and all the rest.
We know what the truth is.
We know the law is.
We’ve always known it, but yet the legislature time and time again exhibits this stubborn refusal to follow the law.
Justice Byron R. White: Well, I suppose the -- they do attack that plan but right now there’s no issue between you and the state on voters registration --
Mr. Philip J. Shea: No, there is no issue to what should be done.
We all know what the law is.
Justice Byron R. White: And no issue on any of the substantive issue?
Mr. Philip J. Shea: That’s right which you call substantive, yes.
The question is --
Justice William J. Brennan: Then what really the issue you were telling was that the Courts waited long enough for the legislature to act.
They didn’t do it and the Court didn’t act.
Do you want now to tell the Court, you fashion the plan out and make it effective, that’s what you want?
Mr. Philip J. Shea: I wish I could have said it as well.
That’s exactly what I want, yes.
Chief Justice Warren E. Burger: You press that notwithstanding the Court’s explicit statement that will act on November 1st if the legislature has not acted?
Mr. Philip J. Shea: Again Mr. Chief Justice, the Court said that we may then petition to say, but the reason that we’re upset is that the Court had in April of 1970, had all the population figure, the best population figures around, had a plan before it.
We could have had population in the 1970’s elections.
We could have had a fair plan by the 1970’s and we’re not so confident now, but first of all, we’re very doubtful that malapportioned legislature is going to reapportion itself.
So, it is very leadership is decimated.
We can’t really expect that.
It hasn’t happen in the past and we can’t expect it again.
We can’t expect the court, we're not terribly optimistic about the Court fashioning proper relief.
When we come to our hearing in 1972, after filling a petition on November 1 and November 2, we can’t be so optimistic that the Court would then presented with another population plan is going to do anything different than it did in April of 1970.
Justice Thurgood Marshall: Your position is that you’re unhappy with the legislature and you are unhappy with three-judge court and want us to do it?
Mr. Philip J. Shea: No, Mr. Justice Marshall.
I don’t want you to reapportion the state.
I want you to tell the court below to hear us right away on a population plan and to order it in effect.
Justice Thurgood Marshall: Now, we’re down to whether you get a hearing before the Court next week or November?
Mr. Philip J. Shea: Exactly.
Justice Thurgood Marshall: Is that where we are?
Mr. Philip J. Shea: Exactly.
Justice Thurgood Marshall: What’s your magic in that?
Mr. Philip J. Shea: Well --
Justice William J. Brennan: When do you elect your legislature?
Mr. Philip J. Shea: In November, of even numbered years.
Justice William J. Brennan: Even numbered years, so your next election is 1972?
Mr. Philip J. Shea: Well, coinciding with the presidential election.
Justice William J. Brennan: And your theory is that there should be a plan which could be applicable to 1972 legislative elections?
Mr. Philip J. Shea: The indications are that they will not.
Justice William J. Brennan: And waiting until November for the Court to do something (Inaudible)
Mr. Philip J. Shea: Well first of all – well, there’s a double-edged question.
First of all, there’s the time and secondly there’s the fact that the Court has not said that it would impose a plan.
So what we'd like is to -- for this Court to say open your doors right away and when you open the doors, if a constitutional plan is submitted to you based on population, impose it.
And if no one can do it (Inaudible) and everyone will do it, everyone will get together then, nobody wants that.
Justice Hugo L. Black: How long have you been trying to get that done?
Mr. Philip J. Shea: Well, as I say the complaint was filed in -- what done particularly Mr. Justice Black?
To get a constitutional plan?
Justice Hugo L. Black: Yeah, how long have you been waiting?
Mr. Philip J. Shea: Well the complaint was filed in April 1964.
Justice Hugo L. Black: 1964?
Mr. Philip J. Shea: Yes, so it’s a seven-year case now.
That’s again one of the reasons why we’re not terribly optimistic about what’s going to happen next few months because we don’t feel that people have shown the will to go ahead and to do what -- they are just reluctant to do.
Justice Thurgood Marshall: You mean the court is showing the --
Mr. Philip J. Shea: The Courts and the legislature.
The courts have been too indulgent and too patient we believe with legislature.
We have no reason to think that the legislature is going to all of a sudden has some inner resurrection and get religion.
It hasn't in the past and it’s -- the legislature is malapportioned as ever.
It seems amazing since I have been in this, the sense of territory that legislators have, it’s like animals.
They belong to a sense of territory, I mean territory is the area from which they are reluctant.
And they’ll go kicking and screaming before they change it and that’s particularly true when you have legislatures we now have with a control by the majority party from these people that are from Northeast Phoenix, where they have 27,000 people.
And when they start reapportioning, half of them have to go or a good number of them have to go.
We can’t really quite say that legislatures -- it has been my experience in the past, they don’t just do that.
So we are very -- have no optimism whatever that the legislature is going to do the right thing and we don’t have any optimism that the -- that the court is going to say we’ll do it or run at large or bring us a plan so that we can do something and we’ll order it in effect.
So for this reason we’re seeking the order of this Court to order the three-judge court to open its doors to us right way, or to any party right away and to impose a plan in this Constitution.
Justice Hugo L. Black: Who were the judges, who were the judges?
Mr. Philip J. Shea: The judges were Ninth Circuit Judge Gilbert Jertberg, Tucson District Court Judge James A. Walsh, and Phoenix District Court Judge Walter Craig.
Justice Thurgood Marshall: Was there a time limit on the (Inaudible)
Mr. Philip J. Shea: No Mr. Justice Marshall I don’t think that we need to have a time limit.
I think if --
Justice Thurgood Marshall: So it would be alright if we say that (Inaudible) November 1?
Mr. Philip J. Shea: Well, if the Court is required to open its doors to us, we will be done well before then.
Justice Thurgood Marshall: Well, you say the court can wait for 7 years, it doesn't look like it is ever going to move, what makes you things don't move quick now?
What you really want to do is us to lay down guidelines and tell the Court how to handle its business?
Mr. Philip J. Shea: Well, the Court --
Justice Thurgood Marshall: Right?
Mr. Philip J. Shea: To an extent.
The term guidelines Mr. Justice Marshall is kind of confusing, because you see the District Court by its decree of May 19, 1970 filed an opinion in the thing which set guidelines which are very enlightened, set them for the legislature, but refused to order, to make any specific order as to what would happen, as to what should happen.
Justice Hugo L. Black: As I understand it, really what you want is to have a Court change its platitude into an order?
Mr. Philip J. Shea: Exactly, Mr. Justice Black, exactly.
Justice Byron R. White: Mr. Shea, if the Court adopted a plan now based on the 1970 census figures, the Court heard you and the Court adopted your plan and put it into effect and then the legislature had a special session and adopted its own plan.
Now I suppose it would supersede the District Court’s plan?
Mr. Philip J. Shea: Yes, I think that --
Justice Byron R. White: So what if you really gain?
You wouldn’t think the legislature would just not attempt its own plan that the Court made one?
Mr. Philip J. Shea: If the court made one, then the legislature could only get its plan approved if it enacted one just as good or better and it would do so.
Justice Byron R. White: I know but there, there maybe also sorts of choices to be made about how to construct constitutional plans?
Mr. Philip J. Shea: I don’t -- yes, I think Mr. Justice White.
Justice Byron R. White: They all did that anyway?
Mr. Philip J. Shea: I think that Mr. Justice White really on the basis of experience again that these nice decisions are going to be made by the legislature when the next legislature -- right after a properly, a legislature is elected on the basis of a properly apportioned plan.
You’re not going to have a nice constitutional plan come out of a terribly malapportioned legislature.
I don’t think it’s going to be before -- until after the election of 1972, that we get a legislative plan that cuts the mustard, and then only if we have reapportionment before 1972, that’s all Your Honor.
Chief Justice Warren E. Burger: Thank you Mr. Shea.
Argument of John M. Mcgowan
Mr. John M. Mcgowan: Mr. Chief Justice, may it please the Court.
I would like to briefly review for the Court some of the history of this case.
As Mr. Shea properly stated, it was filed in April 1964 at -- no action was taken in the legislature because at that time this legislature was in adjournment.
It said we’ll not meet again until 1965 and at that time, it made some passing attempts at legislation.
Then, in a special session,in October 1965, it passed that -- one house passed a Bill, the Senate passed a Bill.
That was then before the Court in the hearings we had in November of 1965, and lest there be a feeling that the present majority was the majority then, the Senate was elected in 1964, had two republicans and 26 democrats, had 35 republicans and 45 democrats in the House.
That was under the old Senate before reapportionment.
In 1965 we had a three-day hearing before then Circuit Judge Pope, the judge Welsh and I can’t recall other justices –judge was there.
Then in February 1966, the decree was issued and the parties were told to agree on the two populous counties for the division of Maricopa and Pima County, an agreement was is in effect reached and the Court changed a few precincts and the agreement was reached between the major in effect the parties, I mean the political parties.
At that time, the plaintiff intervener was not in the action, it was between Mr. Klahr and the Governor, that time there was a democratic governor and the legislature.
The hearing, the decree was established the fact that we had 30 districts in the states and each senatorial district had two House Members.
The counties were kept together as units except in the two major counties and there they were subdivided by a formula that the Court approved.
That the Court in effect suggested and that was bringing the 1960 census figures up to date by ratio of the voter registration in the county to the precinct involved because in Arizona, the rapid growth patterns, if we use census tracks which if you've ever read the census tracks, they say up to a telephone poll in effect over a creek and down to an old minings --there’s no legal descriptions in the sense that we use in any other legal works and avoiding the census tracks.
So we used precincts in the 1966 division.
In the election of 1966 in the Senate, there were 16 republicans elected and 14 democrats, 33 republicans in the House and 27 democrats.
For the first time in history, Republican Party had a majority in ether House or both houses.
So I say that to you for this one reason that the present leadership of the House in Senate are the beneficiaries of reapportionment.
If it was not for reapportionment, they would still be in the minority, and not only do they act in good faith in an attempt to reapportion, it is to their own enlightened self-interest because they would not be there without reapportionment.
In 1967, there was a special session in which another attempt was made to have a legislated enacted reapportionment to replace the court decree.
That special session was in the Spring of -- in May of 1967.
At that time, the matter was referred to the people and our Constitution says that 5% of the voters may refer to the people any Bill.
No Bill becomes a law for 90 days.
So prior to its effective date, this was referred to the people by 5% of the electorate which meant it went to the ballot in 1968.
The people approved it in 1968, and we had a hearing in January of 1969 in which the Court struck down House Bill 1 it was called, because it did not follow -- it did use registration figures only because in the meantime, the Kirkpatrick and the Rockefeller case had come down.
At the time of the first decree in 1966, the Court was laboring under the thought as Mr. Frank reminded them in our hearing last Spring of a so-called Seller Amendment which was then pending in the Congress that we could have a 15% variation in figures.
That as -- following this Court’s decision in Kirkpatrick no longer of course is the case.
In the hearing we had in last April on the present plan in which they were elected, the plaintiff intervener's witness, a Mr. Cohen Pelt (ph) who were testified before the ad hoc House and Senate Committee, testified that the Senate -- that the census tracks would not be available until August of 1971, that is on page 168 of the transcript.
Justice William J. Brennan: Well, I gather the legislature is not principally doing anything.
Mr. John M. Mcgowan: No Your Honor.
No sir, no Mr. Justice.
Justice William J. Brennan: And Arizona’s position of this situation of having no apportionment, no constitutional apportionment by the law.
Mr. John M. Mcgowan: That’s correct Mr. Justice Brennan.
Justice William J. Brennan: Isn’t that right?
Mr. John M. Mcgowan: That’s correct.
Justice William O. Douglas: You stated in your brief that the legislature is under some judicial compulsion?
Mr. John M. Mcgowan: Yes sir, by November 1 Sir.
Justice William O. Douglas: Where did you find that?
Mr. John M. Mcgowan: In the decree of the Court.
Justice William O. Douglas: I read on page 113 that the Court assumes that the legislator will by November 1, 1970 enact McGowan plan.
Mr. John M. Mcgowan: The Court haven’t been advised a detailed population figures for the State of Arizona will be available from the official 1970 census by the summer of 1971, assumed that there is the legislation -- will by November 1.
Justice William O. Douglas: Do you call that judicial compulsion?
Mr. John M. Mcgowan: We think it is Your Honor.
Justice William O. Douglas: It says, (Inaudible) the legislature to do so, any party may apply to the Court, that just leaves it open for the continuation, does it not?
Mr. John M. Mcgowan: Well sir, the state’s position is that we have a deadline and we have so instructed legislature that they have a deadline of having a Bill ready for us to offer to the Court by November 1.
We have told the leadership of the House and Senate that and that is the theory on which the state is operating.
Justice William J. Brennan: Do you get anymore optimistic prediction or one (Inaudible)?
Mr. John M. Mcgowan: Well, no sir, Mr. Justice Brennan, the figures are still -- they say now that possibly in June, but Mr. Cohen Pelt's (ph) figures in the trial, August of 1971 because they have to break them down by census tracks and in census tracks in populous areas means by blocks.
So we cannot get them on tape, that’s the word that everything operates now on by until August of 1971.
Justice William J. Brennan: But, there is some suggestion that may in fact be available by --
Mr. John M. Mcgowan: Early, yes sir.
Justice William J. Brennan: June.
Mr. John M. Mcgowan: But only a suggestion but the witness --
Justice William J. Brennan: But, the legislature now, will it be a continuous session between now and November?
Mr. John M. Mcgowan: No Mr. Justice Brennan, it will not.
It will anticipate as being over by the Eastertide this year --
Justice William J. Brennan: By over you mean --
Mr. John M. Mcgowan: For the regular session and it will be called – I am sorry?
Justice William J. Brennan: This would have to be -- it would it be a special session?
Mr. John M. Mcgowan: Yes sir.
It will be called into special session for this, for the Governor, yes sir.
Justice William J. Brennan: And can it be unless the Government calls for a special session?
Mr. John M. Mcgowan: Well, there’s a procedure that House and Senate -- the Governor will call immediately.
There’s going to be another special session on taxes.
So special sessions do not totally interfere.
They – it's --
Justice Byron R. White: Mr. McGowan, following the census figures peculiar for Arizona or is it nationwide?
Mr. John M. Mcgowan: It is nationwide Mr. Justice White, but it’s peculiar to Arizona in this effect that they really only go by blocks in -- as Mr. Cohen Pelt (ph) testified in two populous counties.
Our smaller counties do not have them except in great in effect mining districts.
So they will not be too helpful even then.
Justice John M. Harlan: (Voice Overlap) the census figures were available in some areas.
Mr. John M. Mcgowan: They are by counties now, yes sir but not by census tracks which --
Justice William J. Brennan: Was there any reason as per the information, why do you have to base the reapportionment plan on figures by census tracks, there are a lot of figures available by counties?
Mr. John M. Mcgowan: Because Mr. Justice Brennan, the 76 -- almost 80% of our population resided in two big counties and if we don’t know that’s Mr. Shea’s principal complaint what the present system is he says that we have used the wrong formula for the allocation internally in the big counties.
We use what the Court used in 1966.
We put the 1968 registrations on a formula and put them to the actual 1960 census.
Justice William J. Brennan: Do I understand that one of the opinions you can no longer start with a reappointment plan on the basis of registered voters, you have to do on population?
Mr. John M. Mcgowan: That’s correct Your Honor.
Justice William J. Brennan: And you can’t do it on population by larger areas than such as that?
Mr. John M. Mcgowan: No sir.
We have no way knowing where the people are.
It’s difficult in the last decade.
Justice Byron R. White: Even though you have the figures for each county?
Mr. John M. Mcgowan: Yes sir.
Justice Byron R. White: The population of each county?
Mr. John M. Mcgowan: Yes, sir.
Justice Byron R. White: But you have single member districts in the rest of the counties, I think?
Mr. John M. Mcgowan: We have -- yes sir 52% of Arizona reside in the large counties which is 15 -- which is one half of the senator's districts.
Justice Byron R. White: Do you have a multi-member district right here?
Mr. John M. Mcgowan: No sir, we have multi-member for the House, single for the Senate.
Justice Byron R. White: So you do need the single-member districts, even if you have county wide multi-member districts you would still need it for the House – single-member districts?
Mr. John M. Mcgowan: Yes sir, we have to have.
In 1960, one of the areas of our county that has now 30,000 people didn’t even exist at Sun city.
I mean, it was (Inaudible).
So that’s why we have had to use, the Court itself in 1966 used, the projection registration to 1960 census.
The Court, the legislature and the Governor, we sought direction because the leadership of the House and Senate, they were not attorneys and they asked us to -- asked full advisory opinion which of course the Court cannot give us.
They have made every effort to blindly follow the direction of the Court and they stand now willing to do, but they are now appealing on the theory that they cannot do anything until the census tracks come out this summer.
As the court in its -- we had 200 runs of the computer to affect this present system.
Every district was less than 1% deviation which no other state in the union can brag about.
We had every district, all of our 30 districts had less than 1%, maximum of 8.7 deviation.
We have done our best to comply with the court's direction and now we wait for the coming of the census tracks to go forward and further comply.
Justice Hugo L. Black: What reason have you to think that the legislature is being what they are?
They were doing things differently hereafter and they’ve done now.
Mr. John M. Mcgowan: Because Mr. Justice Black, the present legislature with the beneficiaries of the reapportionment plan, before the reapportionment plan, the present majority would never have been there, because then we had two from each county and Maricopa County with 700,000 people had two senators.
Now, we have 15.
So it’s to their own self-interest to maintain a fair, equitable, lawful reapportionment.
Justice John M. Harlan: Is that a new set of vested political interest, that’s what you’re saying?
Mr. John M. Mcgowan: Yes, Mr. Justice Harlan, yes sir.
Rebuttal of Philip J. Shea
Mr. Philip J. Shea: I’d like to respond briefly if I may to a couple of points.
The first one is critically important and that is the availability of the figures because that has so much to do with the timing and say that we now have the population 70 -- population figures by county.
Well, that is to say that the 1970 population figures by county is published in a little pamphlet that you buy for 35 cents, it doesn’t mean it's the only figures available.
It said that this summer, and possibly in June the other figures, the more complete figures which we all agree are necessary, the census track figures are available in tapes.
Well, you can call this number here of the U.S Census Bureau in Washington, D.C and they’ll say well, we don’t have them on tapes and we don’t have them on a brochure that costs 35 cents.
But, they are there, you see, they are there if anybody has the will to find them, to dig them out to do these things.
Justice William J. Brennan: Well, I know but (Inaudible), if you were to go today and ask one and I said, go ahead, read the books, take them off, and they certify those officially on 1970 figures?
Mr. Philip J. Shea: I don’t know if there is any process of informatory certification at any stage.
All I am saying is they’re available.
Justice William J. Brennan: (Inaudible) basis some officially certified, take the population figures.
Isn’t that the basis of reapportionment plan?
Mr. Philip J. Shea: I don’t know.
I frankly don’t know Mr. Justice Brennan.
Justice William J. Brennan: That's what (Inaudible) that's what the case (Inaudible) have referred to census figures which (Inaudible)
Mr. Philip J. Shea: Well, I don’t know if they’re officially certified, and then between perhaps now and if they have not been but --
Justice William J. Brennan: What happens if you have to go -- the District Court will require to open the door, you want to bring in a plan based on 1970 figures (Inaudible) where would you get the basis of figures?
Mr. Philip J. Shea: I’d get them from the United States Department, the Bureau, the Census in Washington, D.C.
Justice Thurgood Marshall: You get attendant figures then in August, they put out a new set of figures without the reapportionment again.
There are only one set of figures that have any bearing on this Court to the Census Bureau that they are certified, to go and to see along, am I right?
Mr. Philip J. Shea: I am frankly not familiar with the process of the certification of figures.
Chief Justice Warren E. Burger: What you say Mr. Shea, I gather yo do not share Mr. McGowan’s optimism at all on the changes that have occurred in the legislature up to now and their likelihood to accomplish this objective in the special session which he assures us will be held.
You don’t share that feeling.
Mr. Philip J. Shea: Mr. McGowan and I are in complete disagreement on that.
Justice Hugo L. Black: Why?
Mr. Philip J. Shea: Because my experience is that a legislature does not reapportion itself, so as to disseminate its leadership and that’s what's going to have to happen.
Chief Justice Warren E. Burger: But the last reapportionment created a new leadership as Justice Harlan suggested, a new set of interest has come into being.
Do you agree with that?
Mr. Philip J. Shea: Yes, they did.
Now that those new set of figures are going to have to disappear, because they all can’t get returned if the right thing is done.
That’s the problem with going -- of temperizing with unconstitutional plans.
Chief Justice Warren E. Burger: You don’t think the polite but rather clear suggestion on the three-judge court is going to have any impact on the legislature?
Mr. Philip J. Shea: No.
Chief Justice Warren E. Burger: It’s true that the Court did not order that the states obviously, according to Mr. McGowan’s representation, has treated the Court’s polite suggestion as though it had done an order, a mandate?
Mr. Philip J. Shea: Yes.
Justice Hugo L. Black: Have they?
Mr. Philip J. Shea: Although I take his word for, in other words, their leaders set around in a room and they say well, you know the Court said by November 1 --
Justice Hugo L. Black: Have they acted?
Mr. Philip J. Shea: No, he says that they intend to act before November 1, 1971 because they regarded it some kind of a moral time limit.[Attempt to Laughter]
Chief Justice Warren E. Burger: But he also ties that time under the availability of the figures, does he not.
Mr. Philip J. Shea: Right, and that’s what I dispute too.
Chief Justice Warren E. Burger: This was certainly, I do not read this as a dilatory action, but as a representation made to this Court by responsible counsel, that these figures will be available by June perhaps, but within 60 days thereafter and that the legislature will be in a special session.
Do you challenge that?
Mr. Philip J. Shea: No, I don’t sir.
Justice Hugo L. Black: You agree that he can make such thing, as to what the legislature will do?
Mr. Philip J. Shea: Well, he makes the statement in all good faith and he’s a man who is close to the leadership and I am sure he is accurately reporting what he advices them what they say they will do.
I have no doubt that they’ll get some figures and go into a special session though I have every doubt in the world that they are going to, as I said, decimate their leadership.
Justice Hugo L. Black: Do you think then that it just have to be tried out again in the Court?
Mr. Philip J. Shea: We’re going to go back to Court, I have no doubt about that.
We go back to Court, it will be 1972, and then they’ll say it’s too late to appeal again and then nine years ill pass.
So I think that what we'd like to do is have it straighten out now.
Chief Justice Warren E. Burger: Thank you Mr. Shea, thank you Mr. McGowan.
The case is submitted.